F I L E D

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

United States Court of Appeals

Tenth Circuit

MAY 17 2000

PATRICK FISHER
Clerk

JULIA WHITETREE,
Plaintiff-Appellant,
v.
KENNETH S. APFEL, Commissioner,
Social Security Administration,

No. 99-5166
(D.C. No. 98-CV-461-H)
(N.D. Okla.)

Defendant-Appellee.
ORDER AND JUDGMENT

Before KELLY , McKAY , and HENRY , Circuit Judges.

After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.

This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

Plaintiff Julia Whitetree appeals from an order of the district court

affirming the Commissioners determination that she is not entitled to Social
Security disability benefits. We affirm.
We review the Commissioners decision to determine whether his factual
findings were supported by substantial evidence in light of the entire record and
to determine whether he applied the correct legal standards. See Castellano v.
Secretary of Health & Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994).
Substantial evidence is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion. Id. (quotations omitted). In the course of
our review, we may neither reweigh the evidence nor substitute our judgment for
that of the agency. Casias v. Secretary of Health & Human Servs., 933 F.2d 799,
800 (10th Cir. 1991).
Ms. Whitetree alleged disability as of January 21, 1994,

injuries to her shoulder and arms, and depression

due to myofascitis,

. The administrative law judge

(ALJ) determined that Ms. Whitetree was not disabled at step five of the five-step
sequential process, see Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir.
1988), as she could perform light work that did not require repetitive overhead
reaching.
On appeal, Ms. Whitetree argues that the ALJs determination of her
residual functional ability is not supported by substantial evidence because the
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ALJ stated she was restricted from only repetitive overhead reaching, while she
maintains she cannot do repetitive reaching of any sort. She asserts that all of the
jobs identified by the vocational expert (VE) as ones she could perform require
repetitive reaching.
The record shows that one physician observed intrinsic shoulder pathology
on the X-rays of her left arm. Later, her treating physician saw no objective
abnormality which would lead him to a diagnosis. He released her to moderate
work noting that she could not return to her normal job which involved heavy
duty repetitive activities which aggravated her condition. Two examining
physicians determined that Ms. Whitetree had some impairments due to shoulder
problems. One examining psychologist noted that she had repetitive motion
impairments. A different examining psychologist stated that she may have
over-reported her symptoms and she was likely to brood on her problems which
would result in greater symptomatology. No physician has restricted her from all
repetitive reaching.
The VE opined that Ms. Whitetree could perform the jobs of sedentary
order clerk, sedentary cashier, light food service work, or light stock and
inventory clerk. These jobs are listed in the light and sedentary categories.
Ms. Whitetrees treating physician specifically restricted her from repetitive

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reaching as performed in her prior job which involved heavy duty activities.
He released her to light work.
Substantial evidence supports the determination that Ms. Whitetree can
perform light or sedentary work that does not require repetitive reaching. The
ALJs misstatement that Ms. Whitetree is restricted from repetitive overhead
reaching rather than from all repetitive reaching was harmless. The VE clearly
understood that the hypothetical was changed to include no repetitive reaching as
she pointed out the error to the ALJ prior to discussing which jobs Ms. Whitetree
could perform. The ALJs correction of the hypothetical was in response to the
VEs observation.
The judgment of the United States District Court for the Northern District
of Oklahoma is AFFIRMED.

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge

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